This a reminder that the law on divided infringement has recently changed. There is no longer the requirement that a single-entity be liable for direct infringement for inducement to exist. “Rather, liability under § 271(b) may arise when the steps of a method claim are performed by more than one entity, provided that the other requirements for inducement are met.”
Background / Facts: The patents here are directed to methods for locating available real estate properties using a zoom-enabled map on a computer. The claims recite various operations, some of which were deemed to be performed by the computer and others were deemed to be performed by the user. Thus, no direct infringement or joint direct infringement was found, as the accused infringer did not exercise direction or control over users of its websites. However, that is no longer the end of the analysis.
Issue(s): Whether the district court legally erred by not analyzing inducement under 35 U.S.C. § 271(b).
Holding(s): Yes. Recently, sitting en banc in Akamai Techs. Co. v. Limelight Networks, Inc., 692 F.3d 1301 (Fed. Cir. 2012), the CAFC clarified the law on inducement and divided infringement. It explained that all the steps of a claimed method must be performed in order to find induced infringement, but that it is not necessary to prove that all the steps were committed by a single entity. In so holding, it overruled the precedent in BMC Res., Inc. v. Paymentech, L.P., 498 F.3d 1373 (Fed. Cir. 2007) that in order for a party to be liable for induced infringement, some other entity must be liable for direct infringement. Reversed and remanded for consideration of divided infringement under an inducement theory.